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Tuesday, February 15, 2011

USC hosted United States Supreme Court Justice Anthony M. Kennedy in February. In just over 24 hours, the native Californian kept busy with a number of events, including presiding over a mock trial for Hamlet (yes, that Hamlet), discussing insights into the Constitution with law students, touring USC Law’s library, and meeting with Provost Elizabeth Garrett and President C.L. Max Nikias. (Click on the links for the full stories.)

Thanks to USC, literary history’s most famous melancholic was subject to a modern American trial. Having suffered the slings and arrows of murderous family and disloyal friends, not to mention a poisoning from which he miraculously recovered, Hamlet stoically endured the scrutiny of attorneys and psychiatrists, judge and jury. Together they parsed Hamlet’s soliloquies, speeches and actions to determine whether the young prince was criminally responsible for the murder of Polonius.

Put more colloquially: was Hamlet insane when he stabbed at the arras?

Presented by the Shakespeare Center of Los Angeles, and adjudicated by Justice Anthony M. Kennedy, “The Trial of Hamlet” featured top lawyers, expert witnesses and a jury whose early deliberations were broadcast to the audience. The one-time mock trial event was held in USC’s Bovard Auditorium.

“The sole purpose of this trial is to determine, at the time Polonius was killed, was Hamlet criminally responsible?” Justice Kennedy said. He offered that Shakespeare’s account of events could be used during the trial.
“After 400 years, we are finally getting our day in court,” crowed Blair Berk, a named partner in the firm of Tarlow & Berk, for the defense. “Sane, or not sane, that is the question.”

Danette Myers, a 24-year veteran of the L.A. District Attorney’s office, detailed the rationality of Hamlet’s actions leading up to Polonius’s death, particularly the prince’s decision not to murder his uncle, the king, when Hamlet found him praying.

“These are the words of a very thoughtful individual,” she said. “Acting crazy doesn’t make you crazy.”
The attorneys and psychiatrists for both sides displayed a formidable recall of the play, heavily quoting from it to buttress their arguments.

The verdict? Ten jurors found Hamlet criminally responsible, or sane, with two jurors finding him not responsible. Justice Kennedy thanked the jurors, lawyers and witnesses before remanding Hamlet to the further conjecture of actors, scholars, readers, lawyers and psychiatrists for generations to come.

What better person to learn constitutional law from than a Supreme Court justice? First-year law students from two Constitutional Law classes had exactly that opportunity when Kennedy delivered a guest lecture at USC Law.
He covered constitutional law, separation of powers and history, sprinkling in jokes and anecdotes along the way.
A former Constitutional Law professor, Kennedy is no stranger to teaching. His ability to teach and keep the class engaged was clear.

He talked about Article I, Section 8, of the Constitution, which grants Congress the power to pass all laws necessary and proper for carrying out the enumerated list of powers. He often referred to historical moments in law, touching on the founding fathers’ intentions and how they related to the law.
Of the Federalist Papers, he said, “It’s brilliant. It’s one of the greatest political documents written in history. And they wrote it over a summer.

“This idea that we are one nation, one people, was powerful. The word ‘union’ has a rhapsodic, poetic, inspirational, aspirational quality.”

His words were a mix of educational, humorous and inspirational.

“Democracy presumes each generation is a trustee for the next,” he said. “You will soon be the trustees of freedom.”

His extensive historical knowledge impressed students.

“It was really inspirational to see such an amazing legal mind at work, especially one with such a clear affinity for law and history,” Starrett Berry ’13 said. “His grasp of history and its ramifications for legal systems today was really amazing. It was really inspirational to have such a paragon of the legal system show us what a true grasp of law is like.”

Toward the end of his lecture, he took questions. One student asked whether the justices paid attention to the news media when making their decisions. Kennedy answered no. “Courts make decisions with political consequences, but contrary to popular belief, we don’t make them in a political way. In my office, I have a window facing the lawn and I see the protestors with their signs and I never know what side they’re on,” he said, eliciting laughter.

It might take a fair amount of suspended disbelief to accept that a lawyer can have a sense of humor, but a Supreme Court justice?

In an hour-long discussion filled with humorous anecdotes (such as feeling awkward among misbehaved Congressmen at the State of the Union) and sly asides (“Your professors might claim it takes as much work to write your exams as it does to take them. It doesn’t.”), Justice Kennedy had his USC Law audience in stitches. Kennedy sat down with Dean Robert K. Rasmussen before a sea of students. In a conversation that also was introspective and thoughtful, Kennedy reflected on his years on the court, offered advice to the future lawyers and answered questions from students.

Kennedy said sitting on the high court wasn’t what he expected.

“I thought it would be mostly a retrospective-looking task, but I soon realized that stare decisis has a prospective dynamic because you are the first person bound by what you do,” Kennedy said. “Of course, we have a real dispute that we’re solving, but we’re working in a larger system.”

That system, which Kennedy likened to an ocean liner with its sluggish changes in direction, is to some extent renewed by each decision the Supreme Court makes.

“You have to write in a way that you can instill or inspire allegiance in the law,” Kennedy said. “You write for the audience so people know you’ve thought through the questions and can give reasons for what you do.”

He recounted the story of a man who, greatly angered by the court’s decision to protect flag burning as speech in Texas v. Johnson, approached Kennedy to chastise him. In response, Kennedy asked the man to read through the decision, which explained that the court is “required to make decisions because they’re ‘right’” according to the Constitution. The man returned to shake Kennedy’s hand and pronounce that he should be proud to be a lawyer.
“I reached that reader,” Kennedy said with pride.

Kennedy, a Sacramento native who was appointed to the federal court by President Ford in 1975 and seated on the Supreme Court in 1988, was in private practice in San Francisco for about 15 years after graduating from Harvard Law School. In his personal life he is a Shakespeare buff and teaches law internationally.